Solicitor-General v Huang [2011] NZCA 436 (2 September 2011)

Court of Appeal of New Zealand

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Solicitor-General v Huang [2011] NZCA 436 (2 September 2011)

Last Updated: 8 September 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA825/2010 [2011] NZCA 436

BETWEEN THE SOLICITOR-GENERAL Appellant

AND CHIEN-CHUAN HUANG Respondent

Hearing: 29 August 2011

Court: Stevens, Ronald Young and Venning JJ

Counsel: M D Downs for Appellant J H Wiles for Respondent

Judgment: 2 September 2011 at 3.00 pm

JUDGMENT OF THE COURT

A Leave to appeal is granted.

B The appeal is allowed.

100. The sentence imposed on the respondent in the High Court is varied by the addition of an order under s 86 of the Sentencing Act 2002 that the respondent serve a minimum period of imprisonment of four years in relation to the sentence.

____________________________________________________________________

REASONS OF THE COURT
(Given by Stevens J)

Introduction

[1] The Solicitor-General seeks leave to appeal the sentence imposed upon the respondent, Chien-Chuan Huang, by Rodney Hansen J in the High Court.[1] Mr Huang pleaded guilty to one count of importing into New Zealand a Class A controlled drug (methamphetamine), contrary to s 6(1)(a) of the Misuse of Drugs Act 1975. He was sentenced to nine years and four months’ imprisonment but the Judge did not order that a minimum period of imprisonment (MPI) be served.
[2] There is no challenge to the length of the respondent’s sentence. However, the Solicitor-General submits that an MPI ought to have been ordered under s 86 of the Sentencing Act 2002, having regard to the size of the importation, the perniciousness of the controlled drug concerned and the need for emphatic denunciation and deterrence for this type of offending. Specifically, the Solicitor-General contends that the Judge erred in distinguishing the circumstances of two of Mr Huang’s co-offenders, each of whom were sentenced to imprisonment and ordered to serve an MPI. The sole issue on appeal is whether an MPI ought to have been ordered.

Factual background

[3] The respondent is from Taiwan. On 16 May 2010 he arrived in New Zealand from Hong Kong as part of an organised tour group, consisting of five other Taiwanese residents. In reality, the group was a front for the illegal importation of what was a very significant commercial amount of methamphetamine. The respondent was one of a number of couriers within the group. He told police that he was to be paid approximately NZ$8,900.00 for his part in the importation. He claimed that his involvement was motivated by his financial struggles.
[4] The attempt to import the methamphetamine in New Zealand was thwarted when one of the members of the group was subjected to a routine search by customs officers upon arrival at the Auckland International Airport. In the luggage the officers discovered methamphetamine. The luggage of the other tour group members was then searched and the respondent was found to be carrying 1.3 kilograms of methamphetamine. Collectively, the group was in possession of a total of 8.1 kilograms.
[5] When spoken to by police, the respondent admitted to importing drugs into New Zealand. Two of the respondent’s co-offenders, Che-Yu Jian and Min-Kuan Huang, promptly pleaded guilty to importing a Class A controlled drug into New Zealand. On 7 September 2010 Asher J in the High Court sentenced both to a term of imprisonment.[2] The respondent pleaded guilty shortly thereafter. Of the three remaining members of the group, one was discharged pursuant to s 347 of the Crimes Act 1961, while two were acquitted following trial by jury.

Sentencing of co-offenders

[6] The respondent’s co-offenders each pleaded guilty to two charges of importing a Class A controlled drug (methamphetamine) into New Zealand. As well as the importation made on 16 May 2010, both confessed to police that they had been involved in an earlier importation in March 2010. The Judge, treating both offenders alike, considered that an appropriate starting point was 15 years’ imprisonment. He imposed an uplift of two years to reflect the March importation. After allowance of one year for previous good character and a one-third discount for the guilty pleas the Judge imposed an end sentence of 10 years, seven months’ imprisonment for each of the offenders.[3]
[7] In deciding whether or not to impose an MPI, the Judge emphasised the need for denunciation and deterrence.[4] He also took into account the actual harm to the community by the earlier (successful) drug importation in March. The Judge imposed an MPI of five years imprisonment (just under 50 per cent), concluding:

[27] Given the very large quantities of methamphetamine involved here, it is necessary for me to impose a minimum term. In doing so, however, I do take into account the nature of your role as couriers, the fact that you will be serving your sentence of imprisonment in New Zealand far away from your homeland and that you will be immediately deported when your sentence is complete.

Sentencing of the respondent

[8] Rodney Hansen J adopted the same 15 year starting point for the respondent. He applied a similar one year discount to take account of the respondent’s previous good record and personal circumstances, and an allowance of one-third for the early guilty plea discount. This produced an end sentence of nine years, four months’ imprisonment. But as there was no evidence to suggest that the respondent was involved in any previous importations, the Judge did not impose any uplift.
[9] The Crown submitted that an MPI should be ordered. The Judge disagreed, stating:

[16] ... the Crown submits that I should impose a minimum period of imprisonment proportionate to that imposed by Asher J. I have decided against adopting that submission. An important point of distinction between [Mr Huang] and the two offenders whom Asher J was sentencing is that they had actually imported methamphetamine into New Zealand on a previous occasion. That methamphetamine was actually distributed and, as Asher J observed at [26] of his sentencing notes, they caused real harm to our community by introducing significant quantities of methamphetamine. He emphasised the importance of denunciation in that context.

[17] In the circumstances, I do not see that your unsuccessful attempt as a courier, driven as Mr Wiles submitted largely by financial need and your own naivety, warrants a minimum term of imprisonment for the purposes set out in s 86 of the Sentencing Act 2002.

The law

[10] Section 86 of the Sentencing Act provides for the imposition of minimum periods of imprisonment:

86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

(1) If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.

(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:—

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved:

(c) deterring the offender or other persons from committing the same or a similar offence:

(d) protecting the community from the offender.

...

[11] Section 86 thus gives the sentencing Judge power to order an MPI if satisfied that the period of imprisonment applicable under s 84(1) of the Parole Act 2001 is insufficient to meet the purposes identified in s 86(2).
[12] In R v Aram[5] this Court said s 86 was of “almost invariable [application] in cases of very serious drug offending”.[6] The Court cited an earlier decision of this Court in R v Anslow,[7] which considered over 70 decisions from when methamphetamine was reclassified as a Class A controlled drug. The Court in Anslow noted the “striking” near-uniformity of approach in the imposition of a minimum term in relation to sentences of imprisonment of nine years or more.[8] Such a figure is treated as a guide in relation to the imposition of minimum term, it being observed in R v Richardson[9] that Anslow was not to be understood as holding that a minimum period is inappropriate unless the term is nine years or more.[10]
[13] This Court reviewed the authorities in R v Zhou,[11] confirming that it was not seeking to establish a principle of law that a minimum period must always be imposed for serious methamphetamine offending because this would fetter judicial sentencing discretion. However, the Court reiterated that a reconsideration of the statutory purposes of accountability, denunciation, deterrence and protection of the community was mandatory when a minimum period was being considered and this did not amount to double-counting. Such factors were being considered for a different reason than that being considered when the headline sentence was established. The Court added that:

[19] ... the pervasive and pernicious influence of methamphetamine in New Zealand society is such that the usual MPI of one-third applicable under the Parole Act 2002 will most often be insufficient to meet the statutory purposes identified in s 86(2) in cases of large scale offending.

Submissions

Appellant’s submissions

[14] The Solicitor-General contends that the Judge erred in law in not imposing an MPI. Dr Downs submits that, in light of case law emanating from this Court, serious methamphetamine offending will result in the imposition of an MPI unless compelling reasons exist otherwise.[12] This contention is unaffected by recent cases which hold that imminent deportation may mean the need to protect the community is somewhat less acute. In these cases, this Court has not quashed an order for an MPI but only reduced the minimum period.[13] It is important that New Zealand is not seen as a “soft touch” for the transit of illicit drugs. Foreigners who commit drug offending should not be treated differently to New Zealand citizens.
[15] Dr Downs submits that Rodney Hansen J erred in distinguishing the respondent’s case from his co-offenders when considering the need for an MPI. The fact that the respondent had not been involved in a previous importation was adequately reflected in the higher sentences imposed by Asher J on his co-offenders. The Judge further erred by failing to pay adequate regard to the need for general (as opposed to specific) deterrence in this area. While there were some mitigating factors present, these were not enough to outweigh the need for emphatic general deterrence, given the large amount of methamphetamine involved in the May importation. Hence an MPI of four years was warranted.

Respondent’s submissions

[16] Counsel for the respondent submits that Rodney Hansen J did not err in his approach to s 86 of the Sentencing Act. As subsections (1) and (2) state that a court “may” order an MPI, the sentencing Judge had a discretion which was properly exercised. While Mr Wiles acknowledges that serious drug offending normally warrants an MPI, he submits that the sentencing Judge must assess whether there are compelling reasons or exceptional circumstances dictating otherwise. The respondent submits that Nguyen is a clear authority that the imposition of an MPI is a discretionary power conferred by s 86 which the Court can exercise in light of the specific facts of the case and the principles set out in s 86(2) of the Sentencing Act.
[17] Mr Wiles submits that the Judge appropriately distinguished the respondent’s case from that of his co-offenders on the basis that he had not been involved in previous importation. This approach was correct in law as the imposition of an MPI is a two-stage process, involving, firstly, the imposition of a finite sentence, followed by consideration of whether the offending requires a minimum period of imprisonment. Furthermore, the Judge paid sufficient consideration to the principles and purposes of sentencing, including general deterrence and denunciation principles as highlighted in s 86.
[18] Mr Wiles also submits that the fact that the respondent is a foreign national is a relevant consideration,[14] consistent with the principle articulated in s 8(h) of the Sentencing Act, namely, that the Court must take into account any particular circumstances of the offender that mean a sentence of imprisonment would be disproportionately severe.

Our evaluation

[19] We note that when sentencing the co-offenders, Asher J concluded that a minimum period of imprisonment was necessary to deter and denounce the importation of methamphetamine, even though the offenders were couriers, non-New Zealand nationals and would be deported on release. The two latter factors were, however, relevant in setting the length of the minimum period.
[20] When Rodney Hansen J sentenced the respondent he declined to order that the respondent serve an MPI on the basis that he had not been involved in a previous importation.[15] However, we consider this difference was adequately reflected in the higher sentence and the chosen MPI of five years imposed on the respondent’s co-offenders. The need for general deterrence and denunciation is the same in each case. We also consider that parole eligibility at one third of the sentence is insufficient to meet that need.
[21] While it is true that the respondent was able to point to mitigating features such as a previous good record,[16] they do not in the circumstances of this case outweigh the need for emphatic general deterrence for this type of offending. We agree with the observation of this Court in R v Davis that it is “clearly of importance that New Zealand does not become viewed as a ‘soft touch’ for the transit of illicit drugs or as an ultimate destination for an importer”.[17]
[22] We also record that, when drug offending is undertaken for the purpose of making profit (which is clearly the case here), the personal circumstances of the offender cannot be given much (if any) weight in the sentencing process.[18]
[23] The respondent was a member of a criminal enterprise that brought 8.1 kilograms of a pernicious controlled drug to this country. We agree with Dr Downs’ submission that eligibility for parole after just over three years is a rather startling proposition in light of the authorities discussed earlier. Cases such as R v Aram and R v Anslow indicate that it is “almost invariable” in cases of serious drug offending that the criteria for an MPI will be made out. The need for general consistency in sentencing[19] suggests that an MPI was called for in this case. We are satisfied that the Judge erred in distinguishing the respondent’s case from his co-offenders, and by failing to pay adequate regard to the need for general (as against specific) deterrence.
[24] For the reasons set out above, we grant leave to the Solicitor-General to appeal under s 383(2) of the Crimes Act 1961.
[25] The appeal is allowed. The sentence imposed on the respondent in the High Court is varied by the addition of an order under s 86 of the Sentencing Act 2002 that the respondent serve a minimum period of imprisonment of four years in relation to the sentence.

Solicitors:
Crown Law Office, Wellington for Appellant

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[1] R v Huang HC Auckland CRI-2010-092-14540, 9 November 2010.

[2] R v Jian HC Auckland CRI-2010-092-9117, 7 September 2010.

[3] At [23].
[4] At [26].
[5] R v Aram [2007] NZCA 328.
[6] Ibid at [78].
[7] R v Anslow CA182/05, 18 November 2005.
[8] At [27].
[9] R v Richardson CA85/06, 16 August 2006.
[10] At [26].
[11] R v Zhou [2009] NZCA 365.

[12] Citing R v Nguyen [2009] NZCA 239.

[13] Citing R v Wang [2009] NZCA 118; Choi v R [2011] NZCA 237.

[14] Citing R v Chan [2009] NZCA 528.
[15] At [16].

[16] The Judge at sentencing accepted that the respondent had a good record, although the details in the Criminal Information System of the Ministry of Interior National Police Administration of Taiwan suggests there was some evidence of criminal offending.
[17] R v Davis CA440/04, 20 October 2005 at [67].
[18] R v Terewi [1999] 3 NZLR 62 (CA) at [13].
[19] Sentencing Act 2002, s 8(e).